s.394 - Unfair dismissal

The Trustee for the Kerry Westbury No.1 Operating Trust T/A Clean Well

Application made pursuant to s.365 - no dismissal - Application dismissed.

[1] Ms Laura Knowles (the Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by The Trustee for the Kerry Westbury No.1 Operating Trust T/A Clean Well (Respondent) in contravention of Part 3-1 of the Act. Section 365 of the Act provides that a person is only able to apply for the Commission to deal with a dispute if the person "has been dismissed" and it is alleged that the dismissal involved a contravention of Part 3-1 of the Act. The Respondent has raised a jurisdictional objection to Ms Knowles' application on the basis that Ms Knowles was not dismissed.

• [2] In Coles Supply Chain Pty Ltd v Milford,[1] the Full Court of the Federal Court outlined the task of the Commission in cases such as this one, as follows:

"To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply."[2]

[3] As a person must have been dismissed in order to be entitled to make a general protections dismissal dispute application, I must determine whether Ms Knowles has been dismissed by the Respondent before the Commission can exercise powers under s.368 to deal with a dispute about whether there was a dismissal in contravention of the general protections provisions set out in the Act. Section 12 of the Act defines what is meant by the term "dismissed" in the Act by stating "see section 386". Section 386(1) of the Act relevantly defines the meaning of "dismissed" as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [4] While s.386 appears within Part 3-2 of the Act dealing with Unfair dismissal, the definition is applied generally, including when determining whether a person "has been dismissed" for the purposes of s 365(a).[3]

[5] As at October 2025, Ms Knowles was employed by the Respondent on a permanent part time basis. Ms Knowles had previously been diagnosed with tendonopathy in her right hand/wrist and in a medical certificate issued by Dr Matthew Hargreaves of the Belmont Family Medical and Bulkbilling Clinic on 3 September 2025, she had been certified as unfit for work for the period 3 September 20205 - 2 December 2025 (inclusive). Ms Knowles had submitted a workcover claim in respect of her condition. This was rejected and that decision is now the subject of an appeal. By early October 2025, Ms Knowles was not in receipt of wages or workers' compensation benefits and had exhausted her paid personal leave entitlements.

[6] On Thursday 9 October 2025, Ms Kerry Westbury of the Respondent sent a text message to Ms Knowles which stated, "Hey thought you might like me.to pay out your holiday pay." Ms Knowles responded by text message four days later, at 12.35pm on Monday 13 October 2025, as follows:

"Hi Kerry, sorry I had not replied to this because I was waiting for directions from my lawyer. I have said before to please just leave everything as it is, because I'm dealing with a lot of other things at the moment to keep even keep up with other life things - it will affect my other payment I am receiving at the moment."

[7] Ms Westbury responded at 1.38pm on 13 October 2025, stating:

"Sorry I didn't hear back and paid everything out"

"I cant hold that indefinitely. I also am.not (sic) sure what is happening."

[8] Ms Knowles responded with a screen shot of the abovementioned medical certificate and the message:

"I have been put on a temporary disability until December, as I said before, about the medical certificate until December - then the Dr and hand therapist will reevalute (sic) my injuries."

[9] To this, Ms Westbury replied "Ok.Thanks."

[10] Ms Knowles said that on or about 16 October 2025, she logged into her profile on the Centrelink App in order to comply with her obligation to report on her earnings. At this point, Ms Knowles said she discovered that the entry relating to her employment with the Respondent stated that it had been reported by her employer that her employment had ceased on 16 October for "health reasons." In addition, Ms Knowles said that on 20 October 2025, she discovered that she had been removed from the Respondent's WhatsApp group.

[11] At 10.06am on 21 October 2025, Ms Knowles sent a text message to Ms Westbury, which stated:

"Hi Kerry, I have just noticed that on my Centrelink app, it says the reason for annual leave payout is due to "Termination".

Is this true? If so, could you please let me know and provide me with an official letter of termination?

[12] This prompted the following three responses from Ms Westbury on 21 October 2025:

1. At 11.13am, Ms Westbury sent the first first of two messages, which stated, "Oh no I didn't want to do that. I just wanted to finalise your payments. I didn't realise that it would do that"

1. The second of Ms Westbury's 11.13am messages stated, "I think it is all in limbo until workcover is sorted. Has that gone any further?"

1. At 2.30pm, Ms Westbury sent, "I.would like to have a chat with you about how you are going? Maybe its best if for now you finish up as it doesn't seem you will be back at work for a while. I am always happy to figure out a different role for you latet (sic) on when you might be ready for work."

[13] On 22 October 2025, Ms Knowles lodged her Form F8-General protections involving dismissal with the Commission asserting that she had been dismissed, effective 16 October 2025 in breach of s.351 of the Act. The Commission acknowledged receipt on 27 October 2025 and sent correspondence to the Respondent on 4 November 2025 requesting its response to the application.

[14] At 10.07am on 5 November 2025, Ms Westbury sent a text message to Ms Knowles, which stated:

"Hi really sorry you won't talk to me and now you've gone to fair.work. (sic) wouldn't this have been better to talk to me. Ive tried so many times."

[15] The Respondent then emailed its Form F8A-Response to a general protections application involving dismissal (Form F8A) at 8.59pm on 5 November 2025. In the Form F8A, the Respondent outlined its objection to the application on the basis that Ms Knowles had not been dismissed, stating:

• "As I tried explaining to Laura there was a mistake made in the payroll system and she should not have been terminated. I tried contacting Laura by phoning her which she did not answer any of my calls and I sent her a text message asking her to call me and wanting to have a chat about what she wanted to do going forward. She made a workcover claim that was denied and has not been able to work since June. I just need to have a chat with her and find out what she wants to do and she will not talk to me."

• "The applicant will not talk to me or advise me of her circumstances and does not keep me informed of progress of her injuries and when she will resume working. I have offered her light duties and retraining - none of which she has responded to."

• "There was an error when I tried to finalise Lauras payments owed to here. I didn't want to terminate her however I do not know what she wants to do and did ask her what her plans were.

She has not worked for many months now and will not talk to me.

I am happy to keep her employed but seems pointless when she will not communicate and cannot carry out her duties"

[16] In addition to the communications outlined above:

1. Ms Westbury, for the Respondent, stated that Ms Knowles had in fact simply been "archived" from the Respondent's WhatsApp group on 8 August 2025 for ease of administration and this was because she was not working at that time, due to being under a medical certificate and having submitted a workcover claim;

1. Ms Westbury confirmed that the payments she wanted to "finalise" was payment of Ms Knowles accrued annual leave plus a further payment she thought she was obliged to make because of the workcover claim; and

1. Ms Knowles said that notwithstanding the text messages from Ms Westbury on 21 October 2025, she lodged the Form F8 because she felt she was being lied to.

[17] If Ms Knowles was not dismissed by the Respondent within the meaning of s.386(1) of the Act, there is no jurisdictional basis for her s.365 application. More specifically, if Ms Knowles' employment was not terminated at the initiative of the Respondent, or if my finding is that she was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for her to pursue her s.365 application.

[18] Having regard to the factual background I have outlined above and the associated contentions outlined in paragraph [16], I am not persuaded that Ms Knowles' employment was terminated at the initiative of the Respondent (s.386(1(a)). Firstly, I accept Ms Westbury's explanation regarding the WhatsApp group status of Ms Knowles, noting that at the time Ms Knowles "archived", she had not been working since June 2025. Secondly, while I can accept that Ms Knowles would have formed the view that she had been terminated when she viewed her Centrelink profile on 16 October 2025, I have noted that almost immediately upon Ms Knowles raising the matter with her on 21 October 2025, Ms Westbury made clear that this had not been her intention and the entry was a mistake. This is consistent with there having been neither notice of termination nor a termination letter, Ms Westbury's advice (also on 21 October 2025) that she was "always happy to figure out a different role" when Ms Knowles "might be ready for work" and the unfiltered account given in the Form F8A filed on 5 November 2025. I am also persuaded that Ms Westbury attempted to make contact with Ms Knowles to discuss matters but Ms Knowles was not receptive because she felt that she had been lied to.

[19] As to whether there has been a dismissal within the meaning of s.386(1)(b) of the Act, there is no suggestion by either party that Ms Knowles resigned from her employment, and nor do the facts disclose a resignation. I do not consider that Ms Knowles resigned.

[20] I have concluded that in this case there was no dismissal within the meaning of s.386 of the Act because I am satisfied there was no termination of Ms Knowles' employment on the Respondent's initiative and it has not been contended by the parties and nor have I been persuaded that Ms Knowles resigned. The effect of my conclusion that Ms Knowles was not dismissed is that her application does not meet the requirements of s.365 of the Act and the Commission does not have jurisdiction to deal with it. As a result of my determination, the application made by Ms Knowles pursuant to s.365 of the Act is dismissed. Given this conclusion, I will not issue an Order.

K Westbury on behalf of The Trustee for the Kerry Westbury No.1 Operating Trust.

[1] [2020] FCAFC 152.

[3] See for example Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [14]- [15] and Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [12].

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